Nicholson v. INS

Opinion

USCA1 Opinion

November 17, 1993      NOT FOR PUBLICATION
                                 NOT FOR PUBLICATION
                                 ___________________

                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 93-1329

                             RADCLIFFE WESLEY NICHOLSON,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

                                 ____________________

                        ON PETITION FOR REVIEW OF AN ORDER OF

                           THE BOARD OF IMMIGRATION APPEALS

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________

                        Torruella and Boudin, Circuit Judges.
                                              ______________

                                 ____________________

            Richard  L.  Iandoli  and  Iandoli  &   Associates  on  brief  for
            ____________________       _______________________
        petitioner.
            Alison R. Drucker, Department of  Justice, Civil Division,  Office
            _________________
        of  Immigration  Litigation,  Frank  W.  Hunger,  Assistant   Attorney
                                      _________________
        General,  and  Richard M.  Evans,  Assistant  Director,  on brief  for
                       _________________
        respondent.

____________________

____________________

Per  Curiam.  Petitioner Radcliffe Nicholson is a native
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            and citizen of Jamaica who  entered the United States in 1983

            at the age of 20  as a lawful permanent resident.   Beginning

            in 1985, Nicholson  became involved in a  series of incidents

            involving  illegal   drugs,  entailing   five  arrests,   two

            possession convictions, and ultimately his conviction in 1989

            of possession with intent to distribute cocaine.  This charge

            made  him   deportable  under  both  the   aggravated  felony

            provision and  the drug offense provision of  the law.  See 8
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            U.S.C.    1251(a)(4)(B); (a)(11).

                 On  January 4,  1990, the  INS issued  an order  to show

            cause why he should not be deported.  The petitioner conceded

            that he was deportable, but asked for a section 212(c) waiver

            of inadmissibility.   8 U.S.C.     1182(c).   The immigration

            judge  denied his application,  and the Board  of Immigration

            Appeals  affirmed this order.   Petitioner  now asks  that we

            overturn  the BIA's decision  or remand  for reconsideration.

            We are indebted  to government  counsel for  a helpful  brief

            elucidating INS precedent.

                 Nicholson meets the statutory requirements for a section

            212(c) waiver,  that is, he  is a permanent resident  and has

            lived here continuously for at  least seven years.  Joseph v.
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            INS, 909 F.2d  605, 606 n.1 (1st Cir.  1990); Gando-Coello v.
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            INS, 888 F.2d 197,  198 (1st Cir. 1989).  Under  In re Marin,
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            16 I&N  Dec. 581  (BIA 1978), a  balancing test  is employed,

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measuring the adverse  factors against the social  and humane

            considerations  to decide,  finally,  if it  is  in the  best

            interests of the country for the individual to remain.  In re
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            Edwards, Int. Dec. 3134 (BIA 1990).  The number and nature of
            _______

            the humane considerations necessary to tip the scales  in the

            individual's favor will vary depending on the severity of the

            adverse factors involved.  A  serious narcotics offense is  a

            particularly onerous factor to  overcome, requiring a showing

            of unusual  or outstanding equities.   Marin, 16 I&N  Dec. at
                                                   _____

            586  n.4.  Even  a showing of  outstanding equities, however,

            merely means the individual meets a threshold, not that he is

            guaranteed the waiver.   In re Buscemi, 19  I&N Dec. 628, 634
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            (BIA 1988).   The  petitioner carries  the burden  of showing

            that  he merits the  relief.  Hazzard  v. INS,  951 F.2d 435,
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            437-38 (1st Cir. 1991); Marin, 16 I&N Dec. at 583.
                                    _____

                 Nicholson's claimed equities  were his relationship with

            his U.S. citizen son, born out of wedlock in 1989; his strong

            emotional  ties  with  his  family,  including  his   mother,

            stepfather,  brother, and  two sisters  who  all live  in the

            Bronx; the length of his  residence in the United States; and

            evidence of his rehabilitation, including the job he has held

            since his release from prison.  Nicholson further pointed out

            the  dismal economic conditions in Jamaica, claiming he would

            be  unable  to find  work  or  to  provide any  money  toward

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supporting his two  children (he also has a  daughter born in

            1983 residing in Jamaica).

                 After weighing these factors  against Nicholson's three-

            year involvement with drugs and  the number and nature of his

            prior convictions,  the immigration judge  denied Nicholson's

            application for a  212(c) waiver.   In particular, the  judge

            noted that while Nicholson had been told to provide affidavit

            testimony from  the mother  of his  son confirming  financial

            support,  her  affidavit  made no  mention  of  any financial

            assistance  provided  by  Nicholson.    Only Nicholson's  own

            testimony--and his mother's testimony that Nicholson had told

            her he gave his children money--indicated that he contributed

            anything to  their support.   Both of his children  live with

            their  mothers, and  his  own claims  about  his daughter  in

            Jamaica  were very vague, indicating  he sent money and gifts

            only sporadically.

                 The   judge  characterized  his   work  history  as  not

            significant, noting that petitioner had not filed tax returns

            for a  number of years  during which he supported  himself by

            dealing drugs and by taking  occasional jobs "off the books."

            His income, as reflected in  tax records, for the second half

            of 1991 was less than $5,000.   The judge thus concluded that

            no one relied on Nicholson for meaningful financial support.

                 The  BIA  affirmed  this  decision,  finding   that  the

            immigration  judge  had  taken  all  relevant  factors   into

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account.  Nicholson  argues that the immigration  judge erred

            in concluding  that he  provided little  support for  his son

            based  on his  partial earnings for  1991.   Nicholson claims

            that by working full-time, with  commissions and a raise, his

            current  yearly salary  is approximately $16,000.   Nicholson

            bears the burden  of establishing his equities, Marin, 16 I&N
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            Dec. at  583, and he  did not provide meaningful  evidence of

            support.   Nicholson lived apart  from his children,  and the

            BIA  is  not  required  to  assume  that  the  petitioner  is

            financially supporting his children.  Indeed, Nicholson's own

            testimony makes vague references to cash, gifts, and clothes-

            -not a systematic, consistent source of support.

                 Even  if  petitioner's  gifts  to his  son  were  to  be

            classified as meaningful support, and if his work record were

            taken to  indicate a  greater degree  of rehabilitation  such

            that  his equities met the threshold of outstanding equities,

            the BIA  still has the  discretion to refuse to  grant such a

            waiver, see Joseph v. INS, 909 F.2d 605, 607 (1st Cir. 1990),
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            and  we can overturn  the decision only  if we find  it to be

            "arbitrary, capricious, or an abuse of discretion."  Hazzard,
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            951 F.2d  at 438  (quoting McLean v.  INS, 901 F.2d  204, 205
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            (1st Cir. 1990)).   Indeed, we  do not  require that the  BIA

            "address  specifically each claim the petitioner made or each

            piece of evidence  the petitioner presented"  so long as  the

            BIA gives "reasoned consideration to the petition."  Martinez
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v. INS, 970 F.2d 973, 974 (1st Cir. 1992).   The BIA gave the
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            petition  such   reasoned  consideration  in   affirming  the

            immigration judge's  findings and  specifically commented  on

            petitioner's history of drug convictions.       

                 Petitioner  also  asks  us  to  remand  because  of  new

            evidence first made available to the BIA.  On  July 23, 1992,

            petitioner filed his appeal to  the BIA.  On August  4, 1992,

            another American citizen son was  born to Nicholson.  The BIA

            gave petitioner  several extensions  to file  his brief,  the

            final  deadline  being January  11,  1993.    On January  19,

            petitioner married the  mother of his son, and  on January 27

            he filed his brief  with the BIA  with two exhibits: the  New

            York   birth  certificate  of   his  son  and   his  marriage

            certificate.   The brief contained  a request  to remand  the

            case in light of  this new evidence.  On February  26 the BIA

            affirmed  the immigration judge's denial of the 212(c) waiver

            without mentioning Nicholson's recent marriage and new son.

                 The government urges  us to cast  a suspicious eye  over

            evidence rapidly assembled  after an initial hearing  has not

            gone  well.   In  any  event, 8  C.F.R.     3.2 presents  the

            requirements for a motion to reopen immigration hearings, and

            the  regulations require that the evidence be unavailable and

            not  discoverable at the former hearing;  here, the child was

            born five months before the brief was due for the BIA review,

            but  three  months  after  the  original  hearing.   The  new

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evidence offered  must also  be material, that  is likely  to

            change  the result if the case were  reopened.  In re Coelho,
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            Int. Dec. 3172 at 13 (BIA 1992).  

                 Admittedly, an additional  child and a wife  do evidence

            stronger emotional ties and possible hardship to petitioner's

            family.    But while  Nicholson  married the  mother  of this

            child,  they apparently do  not live together  and once again

            Nicholson presents  no evidence  that he  supports the  child

            financially.   This  new factor  does  not materially  change

            Nicholson's status.  The immigration judge thoroughly weighed

            the hardship to Nicholson and to his family, noting, however,

            that Nicholson has family, including a daughter, in Jamaica.

                 The judge  did not  weigh lightly separating  petitioner

            from  his family.   However,  he also  did not  weigh lightly

            petitioner's history of  drug convictions and drug use.  When

            a petitioner has been involved in drug  distribution, the BIA

            has not hesitated to uphold a denial of a 212(c) waiver, even

            when U.S. citizen  children have  been born  in the  interim.

            See,  e.g., Hazzard, 951  F.2d at 436.   We see  no basis for
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            believing that the new  circumstances presented by  Nicholson

            would alter  the result reached by the  immigration judge and

            we do not consider the BIA's refusal to remand to be an abuse

            of discretion.

                 The petition for review is denied.
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